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Lord Simon of Glaisdale: It is always valuable when the noble Lord, Lord Peyton of Yeovil, shifts his baleful glare from the building of the Department of the Environment, which he has shaken so severely to its foundations that it is to be dismantled and, we hope, left an open space. He has rightly shifted his gaze on the various attempts by the Executive to allocate to themselves power to alter Acts of Parliament. The provision now in question is such a one.

I am afraid that we come with great suspicion to any measure put forward by this department. It was responsible for the Child Support Act and we cannot help but reflect that that Bill, apart from its schedules, had more than 100 Henry VIII clauses, of which only 15 were subject to the affirmative resolution. We shall deal with amendments to that Act later this Session. I am sure that the noble Baroness is raring to have a go at it. I have offered her a small prize if she can show sufficient restraint and not say, "We told you". So far, she has managed to be in the running for that prize.

The main provisions of the Child Support Act were only part of the unconstitutional measures that were rammed through your Lordships' House. Above all, there was the claim that officials should be put above the law and should have special rights in contradiction to what Dicey defined as the rule of law; namely, that officials are subject to the ordinary law of the land. However, in that Act we found that special powers were given to officials to enter private property and to interrogate employers and fellow employees and even that power was given for the Inland Revenue to breach its duty of confidentiality. Therefore, the noble Lord in charge of the Bill cannot be in doubt that we view with considerable suspicion any measure coming from his department.

As against that, we remember that the noble Lord himself was an original member of the scrutiny committee. We remember also that we owe that committee not only to the noble Earl, Lord Jellicoe, and his committee but also to the Committee of Selection which instituted such a very strong body as it subsequently proved to be and continued to be even after the noble Lord's departure from it.

As I say, this is in the nature of a Henry VIII clause. There were more than 100 regulation-making powers in the Child Support Act. As the scrutiny committee pointed out, there are more than 200 such powers in this Bill. Therefore, we are bound to regard what is claimed with considerable reserve.

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On this occasion, as in the past, the scrutiny committee has shown great discrimination. It has drawn specific attention to only four provisions in the Bill, of which two may overlap. It has signalled clearly that your Lordships are likely to insist on amendments in relation to those four provisions.

An addition which may not be covered entirely by the scrutiny committee's report is the very important point made the other day by the noble Baronesses, Lady Hollis and Lady Seear; namely, authority being taken to create criminal acts by subordinate legislation. The provision to which the noble Lord, Lord Peyton, directed the attention of the Committee is not one which the scrutiny committee clearly signalled against but it gives us an opportunity to say that we rely on the Minister in charge of the Bill—he is entirely in charge of the Bill in this Chamber—not to yield to departmental pressures to derogate from the recommendations of the scrutiny committee.

The noble Lord, Lord Peyton, does not intend—I think rightly—to divide the Committee on the amendment. But I support it strongly because it directs our attention to the powers being sought in the Bill.

Baroness Hollis of Heigham: I am delighted to follow two such distinguished speakers as the noble Lord, Lord Peyton, and the noble and learned Lord, Lord Simon of Glaisdale. On the one hand, we had the elaborate touch of the noble Lord, Lord—I nearly said Lord Satan—Peyton and the noble and learned Lord, Lord Simon, who is indeed a heavyweight on such issues.

The noble Baroness, Lady Seear, and I tried to put down a marker on the last Committee day in relation to the nature, number and significance of the regulations in the Bill. As the noble and learned Lord, Lord Simon, said, there are something like 200 of them, several of which obviously caused the scrutiny committee very real anxiety. I hope that Members of the Committee will share that anxiety when we reach the relevant clauses.

The matter which we raised last week was relatively modest. It was merely a marker or peg on which to raise the general issue. This amendment deals with a more substantial matter, as has been made clear. It means that all the arrangements that we have been discussing for the past three and a half hours of parliamentary time in relation to member-nominated trustees, basic rights to statutory consultation and so on, may be dispensed with by the Secretary of State in particular cases as he sees fit.

What have we been doing? Why have we bothered to do that if all that has been said, including the warmth of response which we received from the Minister on the amendment concerned with unfair dismissal, can be dismissed if the Government so wish?

I invite the Committee to look at the relevant provision. The Secretary of State may make arrangements as he sees fit; and that is wrong. He should not have that power. It is an unreasonable extension of executive power. It is far too sweeping and it enables him to negate wide swathes of the Bill. I am sure that the Minister would not dream of doing that but he cannot bind his successors. He cannot bind them in relation to their good intentions, good humour or their commitment to the principles of the Bill. As a result, we are extremely uneasy about it.

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This clause contains a double jeopardy. The Secretary of State has the power by regulation to alter any or all of the trustee-member arrangements. He has then given himself additional powers, by regulation, to regulate the first set of regulations. The result is that there are regulations acting upon regulations and we get so far away from the text of the Bill that no one—professionals, trustees, the regulator, scheme members, employers, companies and ourselves—will know what the Secretary of State can, may, must, should, ought and will do or not, as the case may be. It will be like trying to traverse quicksands in the dark, an activity which is usually held to be somewhat unwise. We support the amendment.

Lord Boyd-Carpenter: With reluctance, I find myself very largely agreeing with the noble Baroness. These are extraordinarily wide powers. I believe that the Committee is entitled to an explanation, first, as to why the Government seek to give such very wide powers to the Secretary of State; and, secondly, how he intends to use them.

6.30 p.m.

Lord Mackay of Ardbrecknish: I should like to take counsel from some noble Lords opposite who are not present in the Chamber today but who were probably Secretaries of State when my noble friend Lord Peyton was in opposition in the other place—if indeed he was always so deferential to Secretaries of State in the past as he suggested in his speech. I was happy to see that he excluded Ministers of State, though that may be just a temporary blip—

Lord Peyton of Yeovil: I do not want my noble friend to misunderstand me. I did my best to assure him that my deference to Ministers of State remains unwounded by the conduct of Secretaries of State.

Lord Mackay of Ardbrecknish: I am grateful for my noble friend's assurance. I hope that I can keep it for the next five minutes or so as I answer his point.

The noble and learned Lord, Lord Simon of Glaisdale, reminded the Committee—as, indeed, I suppose he will on a number of occasions—that I was a founder member of the scrutiny committee. I appreciate the general point about the need to explain to Parliament as fully as we possibly can exactly why we should be seeking to give future Secretaries of State powers to modify, in the words of the subsection,


    "sections 14, 15 and this section in their application to prescribed cases".

I hope that I can explain exactly what we have in mind in relation to that power.

We consider that we require the power primarily to have the potential to make adjustments to the member-nominated trustee requirements or opt-out provisions to enable them to be used by certain categories of schemes. Those schemes could otherwise have difficulty in operating them. The requirements might cause considerable practical difficulties or involve excessive costs for certain types of schemes.

Representations were made on behalf of some insured schemes, schemes which provide only death benefits and from centralised or industry-wide schemes.

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Industry-wide schemes are those which have more than one unassociated sponsoring employer. In some cases schemes may have hundreds of unassociated employers. I am sure the Committee can appreciate that those schemes could experience considerable difficulty in implementing the member-nominated trustee requirements or following through opt-out arrangements as set out in Clause 15.

The intention is to modify the requirements if it becomes apparent that some schemes would have considerable practical difficulties in implementing them or the procedure would involve excessive expense. My department will consult with pensions professionals and the types of schemes which have made representations. That will enable us to ascertain the circumstances, if any, in which the member-nominated trustee requirements should be modified to accommodate the difficulties faced by those schemes. However, if we choose to modify the requirements, we intend to preserve members' rights to select at least one-third of their scheme's trustees. We also intend to use the power to include corporate trustees under the member-nominated trustee provisions. Many sponsoring employers set up subsidiary companies to act as a trustee for their pension schemes. While the company is a trustee, the individuals who run the scheme are not. They are trust company directors.

The Pension Law Review Committee recommended:


    "In cases of subsidiary companies acting as corporate trustees, legislation should provide that the constitution of the board of directors reflects our recommendations for a board of trustees".

We, too, consider that members of those schemes should have the right to nominate at least one-third of their schemes' company directors.

I turn now to what is perhaps the most difficult point for my noble friend Lord Peyton, the noble and learned Lord, Lord Simon of Glaisdale, and indeed the noble Baroness, Lady Hollis, to accept. It must be said that provisions in the Bill, especially Clauses 14 and 15, are extremely complex. Indeed, we are dealing with a very complex area, as all of us who have had to get on top of it are well aware. To be realistic, there will be circumstances where some unforeseen difficulties will arise which require some kind of amendment. Everyone knows the problem of primary legislation.

In conclusion, my last point is in answer to the general question about secondary legislation. If we had to devise legislation and come to this Chamber with a Bill containing all the regulations, it would, first, be an extremely large Bill. Secondly, because of the detail thereby contained in the legislation, there would be a danger, even with the best will in the world, of our not managing to get absolutely everything right and then having to fix it in concrete for a considerable amount of time to come. That is a general point about regulations. However, with that explanation of what the subsection under discussion seeks to empower my right honourable friend the Secretary of State to do, I hope that my noble friend will be satisfied that there are no ulterior motives or reasons behind taking such a power.


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